The Least Activist Supreme Court in History? The Roberts Court and the Exercise of Judicial Review

31 Pages Posted: 9 Feb 2014

See all articles by Keith E. Whittington

Keith E. Whittington

Princeton University - Department of Political Science

Date Written: February 7, 2014

Abstract

Not too many years ago, scholars could reasonably speak of the U.S. Supreme Court as being among the most activist in American history. Both empirical and normative scholarship was driven by the sense of a Court that was aggressive in the assertion of its own supremacy and active in the exercise of the power of judicial review. The Court under Chief Justice John Roberts cannot be viewed in the same way. The Roberts Court has issued its share of controversial constitutional decisions, but a rarely observed but important feature of the Roberts Court is its unusual restraint in the exercise of judicial review. By some measures, in fact, the Roberts Court can thus far be called the least activist Supreme Court in history. This article demonstrates that the Roberts Court is deserving of that title and investigates some features of the exercise of judicial review of the current Court compared to its recent predecessors. The Court has become less likely to strike down federal laws, but importantly it has become far less likely to invalidate state laws. Although the willingness of modern conservative jurists to strike down statutes is notable, the declining ability of the liberals on the Court to form majorities willing to strike down state laws has been particularly important to the creation of a restrained Court. The return of judicial activism on the Supreme Court is likely to depend on the appointment of more liberals justices to the Court who could press the constitutional views that are now most often expressed in dissent.

Keywords: Roberts Court, judicial review, judicial activism, Rehnquist Court, conservative, judicial restraint

Suggested Citation

Whittington, Keith E., The Least Activist Supreme Court in History? The Roberts Court and the Exercise of Judicial Review (February 7, 2014). Notre Dame Law Review, Vol. 89, No. 5, 2014. Available at SSRN: https://ssrn.com/abstract=2392392

Keith E. Whittington (Contact Author)

Princeton University - Department of Political Science ( email )

Corwin Hall
Princeton, NJ 08544-1012
United States
609-258-3453 (Phone)
609-258-1110 (Fax)

HOME PAGE: http://www.princeton.edu/~kewhitt/

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